Exhibit 10(u)
PROMISSORY NOTE
$1,000,000.00
March 2, 2009
Cybex International,
Inc.
10 Trotter Drive
Medway, MA 02053-2299
(Individually and collectively
“Borrower”)
Wachovia Bank, National
Association
190 River Road
Summit, New Jersey 07901
(Hereinafter referred to as
“Bank”)
Borrower promises to pay to the
order of Bank, in lawful money of the United States of America, at
its office indicated above or wherever else Bank may specify, the
sum of One Million Dollars ($1,000,000.00) or such sum as
may be advanced and outstanding from time to time, with interest on
the unpaid principal balance at the rate and on the terms provided
in this Promissory Note (including all renewals, extensions or
modifications hereof, this “Note”).
LOAN AGREEMENT.
This Note is subject to the
provisions of that certain Loan Agreement between Bank and Borrower
dated July 30, 2007, as same has been or may be modified from
time to time (the “Loan Agreement”). Any and all
collateral pledged to the Bank as security for the Obligations of
the Borrower will act as security for this Loan.
USE OF PROCEEDS.
Borrower shall use the proceeds of
the loan evidenced by this Note to purchase equipment.
ADVANCES. Provided that the Borrower is not in default
under the Loan Documents, Bank will make advances on the Loan to
the Borrower upon the presentation of invoices from the
manufacturer. The advance will be within three (3) days of the
submission of the invoice to the Bank.
INTEREST RATE.
Interest shall accrue on the unpaid
principal balance of this Note during each Interest Period from the
date hereof at a rate per annum equal to LIBOR Market Index Rate
plus two hundred twenty-five (225) basis points
(2.25%), as that rate may change from day to day in accordance with
changes in the LIBOR Market Index Rate (“Interest
Rate”). “LIBOR Market Index Rate”, for any day,
means the rate for 1 month U.S. dollar deposits as reported on
Telerate page 3750 as of 11:00 a.m., London time, on such day, or
if such day is not a London business day, then the immediately
preceding London business day (or if not so reported, then as
determined by Bank from another recognized source or interbank
quotation).
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INDEMNIFICATION. Borrower shall indemnify Bank against
Bank’s loss or expense as a consequence of
(a) Borrower’s failure to make any payment when due
under this Note, (b) any payment, prepayment or conversion of
any loan on a date other than the last day of the Interest Period,
or (c) any failure to make a borrowing or conversion after
giving notice thereof (“Indemnified Loss or Expense”).
The amount of such Indemnified Loss or Expense shall be determined
by Bank based upon the assumption that Bank funded 100% of that
portion of the loan in the London interbank market.
DEFAULT RATE.
In addition to all other rights
contained in this Note, if a Default (as defined herein) occurs and
as long as a Default continues, all outstanding Obligations shall
bear interest at the Interest Rate plus 3% (“Default
Rate”). The Default Rate shall also apply from acceleration
until the Obligations or any judgment thereon is paid in
full.
INTEREST AND FEE(S) COMPUTATION
(ACTUAL/360). Interest
and fees, if any, shall be computed on the basis of a 360-day year
for the actual number of days in the applicable period
(“Actual/360 Computation”). The Actual/360 Computation
determines the annual effective yield by taking the stated
(nominal) rate for a year’s period and then dividing said
rate by 360 to determine the daily periodic rate to be applied for
each day in the applicable period. Application of the Actual/360
Computation produces an annualized effective rate exceeding the
nominal rate.
REPAYMENT TERMS.
Borrower will make monthly payments
of interest only beginning with the payment due on April 1,
2009 and on the same day of each and every month thereafter until
December 31, 2009 (the “Maturity Date”) when
entire balance of principal and interest is due and payable in
full.
UNUSED LOAN FEE.
Borrower will pay to the Bank an
unused Loan fee of twenty-five (25) basis points (.25%) on any
amount that has been not been advanced under this Note. This fee
will be due and payable on the Maturity Date.
AUTOMATIC DEBIT OF CHECKING
ACCOUNT FOR LOAN PAYMENT. Borrower authorizes Bank to debit demand deposit
account number 2000012988228 or any other account with Bank
(routing number 21200025) designated in writing by Borrower.
Borrower further certifies that Borrower holds legitimate ownership
of this account and preauthorizes this periodic debit as part of
its right under said ownership.
APPLICATION OF
PAYMENTS. Monies received
by Bank from any source for application toward payment of the
Obligations shall be applied to accrued interest and then to
principal. If a Default occurs, monies may be applied to the
Obligations in any manner or order deemed appropriate by
Bank.
If any payment received by Bank
under this Note or other Loan Documents is rescinded, avoided or
for any reason returned by Bank because of any adverse claim or
threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan
Documents as though such payment had not been made.
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DEFINITIONS. Loan Documents.
The term “Loan
Documents” used in this Note and the other Loan Documents
refers to all documents executed in connection with or related to
the loan evidenced by this Note, the Loan Agreement referred to
above, security agreements, security instruments, financing
statements, any renewals or modifications, whenever any of the
foregoing are executed, but does not include swap agreements (as
defined in 11 U.S.C. § 101). Obligations. The term
“Obligations” used in this Note refers to any and all
indebtedness and other obligations under this Note, all other
obligations under any other Loan Document(s), and all obligations
under any swap agreements (as defined in 11 U.S.C. § 101)
between Borrower and Bank whenever executed. Certain Other
Terms. All terms that are used but not otherwise defined in any
of the Loan Documents shall have the definitions provided in the
Uniform Commercial Code.
LATE CHARGE.
If any payments are not timely made,
Borrower shall also pay to Bank a late charge equal to 5% of each
payment past due for 10 or more days.
Acceptance by Bank of any late
payment without an accompanying late charge shall not be deemed a
waiver of Bank’s right to collect such late charge or to
collect a late charge for any subsequent late payment
received.
ATTORNEYS’ FEES AND OTHER
COLLECTION COSTS. Borrower shall pay all of Bank’s
reasonable expenses incurred to enforce or collect any of the
Obligations including, without limitation, reasonable arbitration,
paralegals’, attorneys’ and experts’ fees and
expenses, whether incurred without the commencement of a suit, in
any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under
this Note would, but for this paragraph, exceed the maximum
lawful
